BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 1013 A
Assemblymember Krekorian B
As Amended May 10, 2007
Hearing Date: July 10, 2007 1
Civil Procedure/Penal Codes 0
GWW:jd 1
3
SUBJECT
Eviction of Tenants Engaged in Weapons and Ammunitions
Offenses by Public Prosecutors
DESCRIPTION
This bill would establish a limited pilot project for two
years in five California cities (Long Beach, Los Angeles,
Oakland, Sacramento, and San Diego) that will allow city
prosecutors or city attorneys in those cities to file
unlawful detainer actions to evict tenants who commit
specified weapons and ammunition offenses on the rental
property, while allowing a law-abiding tenant to remain
under a "partial eviction." This new pilot program would
be modeled after an existing pilot program that allows city
prosecutors and city attorneys to file unlawful detainer
actions to evict tenants who are violating specified
controlled substances offenses on the rental property.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
AB 1384 (Havice) was enacted in 1998 to create a pilot
project in five specified Los Angeles Municipal Court
districts to allow city attorneys and district attorneys to
seek the eviction of any person who is in violation of the
nuisance or controlled substance law. It became effective
on January 1, 1999 for a three-year trial period.
Participating cities were required to collect specified
(more)
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data on their experiences under the pilot program. A
required Judicial Council report, issued on January 31,
2001, was unable to provide an evaluation of the merits of
the pilot program due to insufficient data.
AB 815 (Havice) was enacted in 2001 to add additional
courts to the pilot program and to extend its life for
three more years. The bill also modified the program to
expressly allow courts to order "partial evictions" to
allow innocent tenants to maintain possession of the
premises if the drug offender has permanently vacated the
premises. A required Judicial Council report, issued on
April 22, 2004, could not evaluate the program due to lack
of resources.
AB 2523 (Frommer), Chapter 304, Statutes of 2004, further
extended the sunset to January 1, 2010 and augmented the
reporting requirements. The bill also required two
additional Judicial Council reports to the Senate and
Assembly Committees on Judiciary summarizing the collected
information and evaluating the merits of the pilot program.
In the city of Los Angeles, according to the sponsor of AB
2523 (Frommer) in 2004, the original pilot program has been
effective in assisting landlords who were intimidated from
bringing eviction proceedings against tenants engaged in
drug-related crimes on the premises. This in turn has
produced a safer and better environment for the other
tenants in the apartment complex who would no longer be
forced to tolerate the criminal behavior.
This bill seeks to replicate the apparent success of that
pilot program for another dangerous, unlawful activity on
rental property - the commission of offenses involving
specified deadly weapons such as firearms and assault
rifles. The bill would establish a similar pilot program
to allow city attorneys and prosecutors to seek the
eviction of tenants who violate specified weapons and
ammunitions offenses on the rental property.
CHANGES TO EXISTING LAW
Existing law provides that a tenant or subtenant who
commits a nuisance upon the premises or uses the premises
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for an unlawful purpose (including the use or sale of
controlled substances) is subject to eviction pursuant to
an unlawful detainer action. (Code of Civil Procedure
Section 1161.)
Existing law authorizes a pilot project in the cities of
Los Angeles, Long Beach, San Diego, and Oakland, under
which a city attorney or city prosecutor may file an
unlawful detainer action against a tenant who is engaging
in specified controlled substances offenses or allowing the
premises to be used for that purpose, when the offense
occurs on the subject real property and is documented by
the observations of a peace officer. (Health and Safety
Code Section 11571.1.)
Existing law requires the city attorney and city prosecutor
of each participating jurisdiction to provide the Judicial
Council with specified information and data, which the
Judicial Council complies and reports to the Senate and
Assembly Committees on Judiciary, along with its evaluation
of the pilot project.
Existing law sunsets the pilot program on January 1, 2010.
This bill would enact a similar pilot project in the cities
of Long Beach, Los Angeles, Oakland, Sacramento, and San
Diego to allow a city attorney or prosecutor to file an
unlawful detainer action against a tenant based on nuisance
or illegal purpose grounds when the tenant is using the
premises for a "weapons or ammunition purpose," which is
defined to mean the illegal manufacture, causing to
manufactured, importation, possession, possession for sale,
sale, furnishing, or giving away of any firearm, any
ammunition for a firearm, any assault weapon, any .50 BMG
rifle, or any tear gas weapon.
The bill would adopt the same standards for this pilot
program as are currently in place for the controlled
substances offense pilot program, including: 1) the
requirement that the eviction action must be based upon an
arrest report or other report by a law enforcement agency
reporting the offense committed on the subject property and
documented by the observations of a police officer; 2) the
ability of a non-offending tenant to remain on the property
by the court's issuance of a partial eviction judgment
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ordering only the removal of the offending tenant, upon a
showing of good cause; and 3) the requirement that
participating cities collect and report specified data
relating to its uses and results of the pilot program to
the Judicial Council annually on or before January of each
year.
This bill would require the Judicial Council to submit a
brief report to the Senate and Assembly Judiciary
Committees on or before April 15, 2009, summarizing the
information collected and evaluating the merits of the
pilot program.
This bill would sunset the pilot programs on January 1,
2010.
COMMENT
1. Stated need for bill
The sponsor of AB 1013, the Los Angeles City Attorney's
Office, writes:
Public safety in housing is crucial to ensuring safety
in our neighborhoods. All too often, we must confront
the tragic results when weapons fired by criminals
find innocent targets, many of them children. Before
they engage in these vicious acts, these individuals
illegally possess and store their weapons.
?AB 1013 will give prosecutors one more tool by
providing an additional consequence for those who
commit crimes involving weapons and ammunition.
In support of the bill, the author writes:
Criminal street gangs wreak havoc in our neighborhoods
through acts of senseless violence that often take
their toll on innocent victims. These crimes of
violence are almost always preceded by illegal
possession of weapons. ?By adding eviction to the
remedies for illegal possession of weapons and
ammunition, we will eliminate the tools for violence
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and bases of operation for gang members, thereby
making our neighborhoods safer. ?In many cases, these
criminals rent houses and apartments which are not so
much homes as they are ammunition dumps and weapons
stockpiles, but landlords are too fearful to evict
them.
In further support, the California Association of
Realtors writes:
Evicting criminal tenants who illegally possess,
import, manufacture, sell, furnish, or give away
weapons and ammunition is uniquely difficult.
Landlords must provide evidence in court to prove
nuisance against a tenant. This is very problematic
when dealing with tenants who are known or suspected
gang members. Neighboring tenants will not testify
against gang members out of fear of retaliation.
Landlords and their agents may also fear for their
personal safety if forced to testify against a gang
member. AB 1013 allows local prosecutors and city
attorneys ? to take on this dangerous unlawful
detainer action against nuisance criminal tenants on
behalf of the people.
2. Specified weapons and ammunitions offenses could be basis
for eviction; but use of the weapon or ammunition would
not be a basis
AB 1013 would allow a city attorney or prosecutor in the
five specified cities to file an unlawful detainer action
against a tenant when the tenant is using the premises
for a "weapons or ammunition purpose," which is defined
to mean the illegal manufacture, causing to manufactured,
importation, possession, possession for sale, sale,
furnishing, or giving away of any of the following:
a) A firearm, as defined in Penal Code Section
12001(b). As used in that subdivision, "'firearm'
means any device, designed to be used as a weapon,
from which is expelled through a barrel, a projectile
by the force of any explosion or other form of
combustion."
b) Any firearm ammunition, as defined in paragraph (2)
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of subdivision (b) of Penal Code Section 12316, or
handgun ammunition or armor-piercing handgun
ammunition as defined in subdivisions (a) and (b) of
Section 12323. Respectively, those provisions provide
that "'ammunition' shall include, but not be limited
to, any bullet, cartridge, magazine, clip, speed
loader, autoloader, or projectile capable of being
fired from a firearm with a deadly consequence;"
"'handgun ammunition' means ammunition principally for
use in pistols, revolvers, and other firearms capable
of being concealed upon the person ? notwithstanding
that the ammunition may also be used in some rifles;"
and, "'handgun ammunition designed primarily to
penetrate metal or armor' means any ammunition, except
a shotgun shell or ammunition primarily designed for
use in rifles, that is designed primarily to penetrate
a body vest or body shield," and has specified
characteristics.
c) Any assault weapon, as defined in Penal Code
Section 12276, 12776.1, or 12276.5. The list is too
long to list, but the category seems self-evident.
Technical amendment needed to correct an erroneous
code reference: On page 8, line 8, strike out
"12776.1" and insert: 12276.1
d) A .50 BMG rifle as defined in Penal Code Section
12278. That section provides: "'.50 BMG rifle' means
a center fire rifle that can fire a .50 BMG cartridge
and is not already an assault weapon ? or a
machinegun?."
e) Any tear gas weapon as defined in Penal Code
Section 12402. That section provides that a "tear gas
weapon shall apply to and include any shell,
cartridge, or bomb capable of being discharged or
exploded, when the discharge or explosion will cause
or permit the release or emission of tear gases; and
any revolvers, pistols, fountain pen guns, billies, or
other form of device, portable or fixed, intended for
the projection or release of tear gas except those
regularly manufactured and sold for use with firearm
ammunition."
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As the sponsor points out, the bill would only apply to
the illegal possession or other illegal activity
involving above weapons and ammunition on rental
property. Thus, a retired peace officer who is entitled
to possess a concealable firearm would not be affected,
and Penal Code Section 12031(h) reinforces that exception
for possession of the weapon at the person's home.
Similarly, persons or items that are exempt under the
current laws, such as military retirees or firearms
curios would not be covered.
Committee staff would also observe that Penal Code
Section 12031(h) expressly permits any person engaged in
any lawful business, or any officer, employee, or agent
authorized by that person for lawful purposes connected
with that business, to have a loaded firearm within the
person's place of business, and also permits any person
in lawful possession of private property to have a loaded
firearm on that property. Thus, simple possession of a
loaded firearm by a tenant on the tenant's property is
not an illegal activity under the Penal Code and thus
could not be the basis for an unlawful detainer action.
However, if that firearm is sold or given away, that
would be a basis for an unlawful detainer action.
Curiously, the bill does not make the "use" of the
firearm on the rental property a basis for an unlawful
detainer action. In light of the author's and sponsor's
statements in support of the legislation, the omission is
probably unintended.
Suggested amendment to also allow use of weapon to be
basis for unlawful detainer action : On page 7, line 38,
after "sale," insert: use,
Similarly, under Penal Code Section 12316, the simple
possession of firearms ammunition is not in and of itself
an offense unless the person is also precluded from
owning a firearm. However, under existing law, the sale
of ammunition to a minor is a misdemeanor, and the
possession of armor-piercing ammunition is punishable as
a misdemeanor or felony wobbler. (Penal Code Section
12320.)
Similar to weapons use, an amendment to allow the "use"
of the ammunition on the rental premises as a basis for
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an unlawful detainer judgment would also strengthen the
bill in the manner desired by the sponsor and author.
Lastly, author's amendments to be offered in committee
will delete lines 3 and 4 on page 8 from the bill. That
deleted language would have also applied the eviction
provisions to the possession of items such as a nunchaku,
shuriken, cane sword, or shobi-zue, items that have both
cultural and martial arts significance. Moreover, while
use of a nunchaku might result in an assault and battery
charge, use of a firearm or assault rifle will likely
result in lethal consequences. Thus, given the author's
and sponsor's focus on firearms and ammunition, the
provision is being deleted.
3. The process under the pilot program
The pilot program authorizes the city attorney or city
prosecutor to file an unlawful detainer action against
any person for creating a nuisance on the property by his
or her illegal weapons or ammunition activities,
including allowing the premises to be used for that
illegal purpose. The city's action would be predicated
on its belief that a specified weapons or ammunitions
offense has occurred on the subject real property based
upon an arrest or other report by a law enforcement
agency reporting the offense committed on the subject
property and documented by the observations of a peace
officer.
In any unlawful detainer action brought by the city
prosecutor or city attorney under this pilot project, the
public prosecutor must first give 30- calendar days'
written notice documenting the alleged nuisance or
illegal activity to the landlord and the offending
tenant. This notice is designed to give the landlord the
first opportunity to file an unlawful detainer action
against the offending tenant. The landlord may then
either file the action or assign the right to bring the
unlawful detainer action to the public prosecutor.
If the landlord fails to file an unlawful detainer
action, or fails to pursue a filed action diligently and
in good faith, the city attorney or city prosecutor may
file the action and may join both the landlord and the
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offending tenant as co-defendants.
If a defendant tenant is found guilty of unlawful
detainer, an eviction order is entered and the tenant's
right to possession is declared forfeited. However,
other tenants who were not violating the law may be
allowed to remain as tenants pursuant to a "partial
eviction" order against the weapons offender. Persons
thus evicted from the property may be permanently barred
from returning to or reentering any portion of the entire
premises. As an express condition of continuing the
tenancy, the court may order the remaining tenants to not
give permission to or invite any person who has been
evicted to return to or reenter any portion of the entire
premises. A violation of a court order is punishable as
contempt by a fine of up to $1,000 and by imprisonment of
up to five days in the county jail. This safeguard
allows the court to assure itself that the weapons
offender does not return to his or her former habitat and
resume business-as-usual.
The ability to obtain a partial eviction order is
considered a key provision of the pilot program because
it allows law-abiding tenants to not be punished for the
misdeeds of co-tenants or family members. Partial
evictions are seen as an equitable and balanced response
to a complex problem. In its absence, a total eviction
would punish innocent tenants who are often family
members, causing disruption and upheaval especially when
there are young children or when the grandparents or
relatives have become caretaker parents, and can destroy
whatever family stability is left and result in the
affected children being shuttled to an overburdened
foster care system.
4. Request for alternative placement of provisions instead
of Penal Code
The committee staff of the Senate Committee on Public
Safety has requested that the new pilot program
provisions should be placed in another code other than
the Penal Code. They explain, with good logic, that the
Penal Code is traditionally used to specify criminal
offenses and penalties and that the proposed pilot
program provisions do not fit within those categories
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since the eviction proceedings are civil proceedings.
SHOULD THE PROVISIONS BE MOVED FROM THE PENAL CODE?
An option is to place these provisions in either the
Health and Safety Code immediately after the current
pilot program for drug evictions or in the Civil Code
provision regarding nuisances.
5. Needed technical amendment?
For reasons unknown, Legislative Counsel's office has
undertaken a campaign to renumber or re-letter code
sections for no apparent reason other than to change for
change sake. (See, e.g., AB 310 (Silva), Senate
Judiciary Committee analysis, Comment 1.) In AB 1013,
they seek to renumber the subparagraphs of Code of Civil
Procedure (CCP) Section 1161 into subdivisions instead.
While this may comport with their preferred style, the
change will force publishers of legal reference materials
such as CEB (Continuing Education of the Bar) and others,
as well as practitioners, to change their materials and
forms to reflect the relettering, much to their probable
dismay as CCP Section 1161 is a very heavily used section
that sets out the process for commencing an unlawful
detainer action. Numerous cross-references in the
various codes will likely also be necessary, which will
either be a task for the California Law Revision
Commission or the Legislative Counsel's office.
In any event, one cross-reference has already been
missed. AB 1013 on page 5, line 18, cross-references to
"subdivision 4" of CCP 1161 instead of the
newly amended "subdivision (d)."
Suggested amendment :
Delete the new relettering of CCP Section 1161 and
restore the old numbering to relieve legal publishers and
practitioners from having to change their reference
materials and forms to reflect the change.
Support: California District Attorneys Association;
California Association of Realtors; California
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Chapter of the Brady Campaign to Prevent Gun
Violence; California Apartment Association; John
A. Russo, Oakland City Attorney; Legal Community
Against Violence (LCAV); Western Manufactured
Housing Communities Association; Yolo County
District Attorney
Opposition:None Known
HISTORY
Source: Rocky Delgadillo, Los Angeles City Attorney
Related Pending Legislation: SB 706 (Runner) would extend
the current drug eviction program to
the City of Palmdale. This bill is
currently before the Governor for
signature.
Prior Legislation: None Known
Prior Vote:Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes
0)
Assembly Floor (Ayes 78, Noes 0)
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